[ v11 p209 ]
11:0209(47)NG
The decision of the Authority follows:
11 FLRA No. 47
NATIONAL TREASURY EMPLOYEES
UNION AND NTEU CHAPTERS 153,
161 AND 183
Union
and
U.S. CUSTOMS SERVICE, REGION II
Agency
Case No. O-NG-29
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and raises issues
concerning the negotiability of three Union proposals. The text of the
proposals is set forth in the Appendix.
Union Proposals 1 and 2 would establish "crediting plans" for use in
establishing the relative merit of the eligible candidates for promotion
to two bargaining unit positions. For the reasons discussed below, the
Authority determines that these two proposals are within the Agency's
duty to bargain. /1/
Promotion candidates must be reviewed to determine both their basic
eligibility and their relative qualifications for the positions to be
filled. As to basic eligibility, the minimum qualification requirements
for a particular position are those established by the Office of
Personnel Management (OPM), as supplemented by any "selective factors"
added by the agency involved, i.e., knowledges, skills or abilities
essential to successful performance in the job to be filled. /2/ A
candidate who fails to meet those minimum qualification requirements is
generally not eligible for further consideration. /3/
Once unqualified candidates have been eliminated from the
competition, evaluation procedures are applied to measure or "rate" the
relative qualifications of the eligible candidates. The rated
candidates are then "ranked" so that the selection can be made from
among those who are best qualified.
The qualifications of eligible candidates are evaluated on the basis
of predetermined criteria by agencies using various methods in
accordance with legal and regulatory requirements under guidelines
promulgated by OPM. The criteria provide the standards against which
the candidates' qualifications are measured. One method of guiding the
measurement process, avoiding inconsistencies in the ratings assigned by
various raters, and providing documentation of the rating process is
through the use of "crediting plans" such as those involved in the
present case. A crediting plan is a set of criteria which reflect the
specific knowledges, skills, abilities, and other characteristics which
management has determined are required for the successful performance of
the job to be filled. Such a plan provides for each criterion, at each
crediting level, definitions and/or examples of relevant factors such as
experience, training, and education. The raters compare the candidates'
backgrounds with these crediting level definitions and examples to
measure the extent to which each candidate possesses the knowledges,
skills, abilities and other characteristics required for the position as
reflected in the criteria of the crediting plan.
The Agency contends that the proposals at issue herein are
nonnegotiable because they interfere with its rights under section
7106(a)(2) of the Statute to make selections for appointments, to
determine the personnel by which Agency operations shall be conducted,
and to hire employees in the Agency. /4/ In addition, the Agency
contends that the proposals are inconsistent with subchapter S6 of FPM
Supplement 335-1.
Section 7106(a)(2)(C) of the Statute reserves to management the right
to make selections for appointments from among properly ranked and
certified candidates for promotion or from any other appropriate source.
Thus, proposals which require selection from a certificate of highly
qualified candidates are inconsistent with section 7106(a)(2)(C) since
management would be prevented from expanding the area of consideration
or from selecting a candidate from any other appropriate source.
American Federation of Government Employees, AFL-CIO, Local 2494 and
Strategic Weapons Facility Pacific, Bremerton, Washington, 7 FLRA No. 90
(1982); American Federation of Government Employees, AFL-CIO, Local 32
and Office of Personnel Management, Washington, D.C., 8 FLRA No. 97
(1982). Of course, the exercise of this management right is subject to
the obligation to negotiate the procedures to be observed in its
exercise and appropriate arrangements for employees adversely affected
thereby. /5/ Thus, the Authority has held that a proposal which limits
the initial area of consideration of candidates for filling vacant
positions, but which does not prevent management from considering other
candidates, from expanding the area of consideration, or from making an
appointment from any appropriate source is not inconsistent with section
7106(a)(2)(C). Association of Civilian Technicians, Delaware Chapter
and National Guard Bureau, Delaware National Guard, 3 FLRA 56 (1980).
As already mentioned, in the present case, Union Proposals 1 and 2
would prescribe the particular crediting plans for evaluating candidates
for certain Agency positions. The proposed crediting plans would only
apply to candidates who are determined by management to be at least
minimally qualified for the positions involved. Furthermore, such plans
would be used only to rate and rank such qualified candidates and would
not be used to eliminate any candidate from further consideration for
selection. /6/ Finally, in this connection, the proposals would not
require the Agency to select a specific candidate or to limit the Agency
to a specific source of candidates. /7/ In this regard, the Union
expressly intends its proposals to leave the Agency free to select or
not to select any qualified candidate for the position from any
appropriate source. /8/ Consequently, Proposals 1 and 2 constitute
procedures which would not prevent the Agency from acting at all to
establish the minimum qualification requirements for a position or from
selecting any qualified candidate from any appropriate source.
Similarly, Union Proposals 1 and 2 are not inconsistent with
management's rights to determine the personnel by which Agency
operations shall be conducted or to hire employees. These proposals do
not restrict in any manner management determinations as to such
personnel and the knowledge, skills, and abilities which such personnel
must possess in order to do the work. Rather, the proposals would only
establish criteria for more precisely evaluating the experience and
education of qualified candidates and, moreover, as noted previously,
would not prevent management from selecting any qualified candidate for
appointment from any appropriate source. It follows, perforce, that the
proposals would not prevent management from exercising its discretion to
hire employees in the Agency. /9/ Finally, the Agency argues that the
provisions of subchapter S6, FPM Supplement 335-1, /10/ preclude it from
disclosing or negotiating the content of its crediting plans. The
purpose of those provisions, as stated therein, is "to maintain the
security and control of examination materials which, if exposed to
unauthorized persons, might provide unfair advantage to some candidates
or otherwise compromise the utility of the selection procedure." Hence,
the content of crediting plans can be released consistent with
subchapter S6 of FPM Supplement 335-1 if the release would not create
any unfair advantage to some candidates or compromise the utility of the
selection process. /11/ The Agency here has not demonstrated, nor is it
apparent, that disclosing the crediting plans in question would create
any unfair advantage or compromise the selection process. To the
contrary, assuming that all candidates have equal access to the content
of the crediting plan, no candidate would be disadvantaged by its
disclosure, nor would the selection process be compromised. Thus, the
disclosure of the crediting plans set forth in Proposals 1 and 2 would
not be inconsistent with subchapter S6, FPM Supplement 335-1.
Accordingly, without reaching the question of whether that provision
constitutes a Government-wide rule or regulation, subchapter S6 does not
bar negotiation of Proposals 1 and 2.
Union Proposal 3, both on its face and as interpreted by the Union,
would require negotiations concerning the substance of performance
standards for the position of Customs Aid. In National Treasury
Employees Union and Department of the Treasury, Bureau of the Public
Debt, 3 FLRA 768 (1980), affirmed sub nom. National Treasury Employees
Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir.
1982), the Authority held that a proposal requiring negotiation on the
content of performance standards for job retention was outside the duty
to bargain in that it would directly interfere with the exercise by
management of its rights to direct employees and to assign work under
section 7106(a)(2)(A) and (B) of the Statute. Since Union Proposal 3
herein similarly would require negotiation over the performance
standards for, inter alia, job retention, it is, for the reasons more
fully stated in Bureau of the Public Debt, not within the duty to
bargain.
ORDER
Pursuant to section 2424.10 of the Authority's Rules and Regulations
(5 CFR 2424.10 (1982)), IT IS ORDERED that the Agency shall upon request
(or as otherwise agreed to by the parties) bargain concerning Union
Proposals 1 and 2. /12/ IT IS FURTHER ORDERED that the Union's petition
for review of Union Proposal 3 be, and it hereby is, dismissed. Issued,
Washington, D.C., February 3, 1983
Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
UNION PROPOSAL 1
Crediting Plan for Import Specialist GS 5/7
Criterion #1 - Demonstrated ability and willingness to comprehend and
learn the laws, regulations, policies and practices pertaining to the
field of classification and value.
Related factors on the CF 188 -
1) Attitude
8) Initiative
9) Learning Ability.
I. "A" - two out of the following four:
1. Not lower than 4s on the above CF 188 factors.
2. Experience within the Customs Service:
a) One year experience in a career ladder position dealing with
laws and regulations.
OR
b) Two years experience in any position in support of those
dealing with laws or regulations. Examples of positions of this
type are Customs Aids, Inspectional Aids, etc.
3. Experience outside the Customs Service:
Two years of technical experience working with laws or regulations
4. Any four year degree.
II. "B" - two out of the following four
1. Not lower than 3s on the above CF 188 factors
2. Experience within the Customs Service:
a) At least 6 months experience in a career ladder position
dealing with laws or regulations.
OR
b) At least one year experience in support of those dealing
with laws or regulations.
OR
c) Two years experience in any position in the Customs Service.
3. Experience outside the Customs Service - One year of technical
experience working with laws or regulations.
4. Any two year degree or the equivalent
OR
Successful completion of any course directly related to Customs Laws
or regulations.
Criterion #2 - Ability to apply knowledge and experience to make
logical and accurate decisions.
Related Factors on the CF 188 -
3) Judgment
5) Job Knowledge
8) Initiative
I. "A" - two out of the following four:
1. Not lower than four in any of the above CF 188 factors
2. 75 or better on the Pace test OR two suggestion Awards
3. Experience within the Customs Service (the same as listed for
Criterion #1, "A" level)
4. Experience outside the Customs Service - two years of experience
which demonstrates the ability to make decisions independently.
II. "B" - two out of the following four:
1. Not lower than three in any of the above CF 188 factors.
2. 41-74 on the PACE test OR one suggestion Award
3. Experience within the Customs Service (the same as listed for
Criterion #1, "B" level, (a) and (B) only - not c)
4. Experience outside the Customs Service - One year of experience
demonstrating independent decision making.
Criterion #3 - Ability to assemble information for the preparation of
written reports and technical correspondence.
Related factors on the CF 188 -
3) Judgment
5) Job Knowledge
12) Written communication
I. "A" - two out of the following four
1. Not lower than 4s in the above related CF 188 factors
2. Two years experience related to the assembly of information
and/or writing of reports.
3. One of the following:
a) A two year degree or the equivalent
b) A specific course in writing
c) A well prepared, coherent CF 67
4. Two suggestion awards OR a PACE score of 69 or above
II. "B" - two of the following four:
1. Not lower than 3 in the above CF 188 factors
2. One year experience related to the assembly of information and/or
the writing of reports.
3. Any courses above the high school level OR a coherent CF 67
4. One suggestion award or a PACE score of 41-68
Criterion #4 - Ability to meet and deal effectively with people of
varied backgrounds.
Related factors on the CF 188 -
1) Attitude
10) Tact
11) Oral Communication
I. "A" - At least two years of experience in a position or positions
which would demonstrate the ability to deal with people with a variety
of backgrounds. This experience may be concurrent and may be within
and/or outside of the Customs Service. In addition, one of the
following:
1. At least two 4s and one 3 in the above CF 188 factors
2. Courses or training specifically related to the criteria
3. Awards and/or commendations related to the criterion.
II. "B" - At least one year experience in a position as defined for
the "A" level and one of the following:
1. At least one four and two 3s in the related factors
2. training or other courses specifically related.
3. Awards and/or commendations related to the criterion.
III. "C" - At least six months experience which would demonstrate an
ability to deal with people, co-workers, the public, etc. and one of the
following:
1. At least 3s in the CF 188 factors
2. Training or other courses related to the criterion.
3. Awards and/or commendations related to the criterion.
Criterion #5 - General knowledge of the Customs organization and
mission.
Related factors on the CF 188 -
NONE
I. "A" - At least one year experience in a career ladder position OR
at least two years experience in a technical, non clerical position in
support of career ladder positions (such as Inspectional Aid) and two
years experience in another position within Customs in a different
aspect of the Customs work.
II. "B" - At least six months experience in a career ladder position
OR at least two years experience in a technical, non clerical position
in support of career ladder positions OR at least one year experience in
the technical position and one year in another position within Customs
in a different aspect of Customs work OR one year experience in each of
three different positions dealing with three distinct aspects of the
Customs Service.
III. "C" - At least one year experience in a technical, non clerical
position OR at least six months in the technical position and six months
in another position OR six months experience in each of three different
positions as defined above.
Criterion #6 - Ability to organize and adjust priorities and
schedules in order to meet changing situations and requirements.
Related factors on the CF 188 -
2) Dependability
4) Adaptability
7) Work Production
8) Initiative
I. "A" - a 75 or above on the PACE test and 3s in the above factors
OR 60-74 on the PACE and a rating of 4 in at least two of the above
factors and one year experience performing in a somewhat independent
fashion.
II. "B" - a 60 or above on the PACE test and 3s in the above factors
OR 41-59 and at least one four and the rest 3s in the above factors and
6 months experience performing in a somewhat independent fashion.
III. "C" - Not lower than 3s in the above factors and less than 6
months experience performing in a moderately independent fashion.
UNION PROPOSAL 2
Crediting plan for Customs Inspector, GS 11
Criterion #1 - Knowledge of Customs and other agency laws, rules and
regulations governing a broad range of commodities, as well as knowledge
of fraud and smuggling techniques.
Related factors on the CF 188 -
3) Judgment
5) Job Knowledge
13) Knowledge of Customs
I. "A" rating - To receive an "A", a candidate must have at least 3
years experience as a GS 9 inspector performing duties in both baggage
and cargo and at least two (2) of the following:
*1. No lower than 4 in the CF 188 factors listed above
2. Seizures, interdictions and/or referrals (to agents, TACT team
and other agencies)
3. Special training (not usual training) including in house training
related to this criteria and/or inside or outside experience or training
related to the criteria.
4. Special awards, commendations, etc. related to knowledge of
Customs.
II. "B" rating - To receive a "B" rating, a candidate must have at
least one year experience as a GS 9 inspector performing duties in both
baggage and cargo and at least two (2) of the following:
1. No lower than 3 ratings in the above CF 188 factors
2. Seizures, interdictions and/or referrals (as above)
3. Special training including in house training related to this
criteria and/or inside or outside experience or training related to the
criteria.
4. Special awards, commendations, etc. related to the criteria
*note-in all the criteria, a lower rating will be acceptable if the
supervisory comments indicate a higher degree of abilities or potential.
Criterion #2 - Ability to make independent decisions with a minimum
of supervision.
Related Factors on CF 188 -
2) Dependability
3) Judgment
8) Initiative
I. "A" Rating - two out of the following 3
1. No lower than 4s in the above factors
2. Demonstrated ability (as shown on CF 67) to make independent
decisions either within or outside Customs for at least three years.
This experience could be concurrent.
3. Related awards and/or experience performing as a summer GS 11
inspector.
II. "B" rating - two out of the following three:
1. No lower than 3s in the above CF 188 factors
2. Demonstrated ability (as shown on CF 67) to make independent
decisions either within or outside Customs for not less than one year.
This experience could have been obtained concurrently.
3. Related awards and/or experience as a summer GS 11 inspector.
Criterion #3 Reliability
Related factors on the CF 188 -
2) Dependability
6) Quality of Work
7) Work Production
14) Stamina
I. "A" - two out of the following three:
1. Not less than 4s in the above CF 188 factors
2. Experience, both within and outside the Customs Service for at
least three years in the last six as shown on the CF 67.
3. Related awards, commendations, Sustained Superior performance
awards, etc. within the last three years and/or a four year degree
and/or completion of a two year degree while working.
II. "B" - Two out of the following three:
1. Not less than 3s in the above factors (CF 188)
2. Experience, both within and outside the Customs Service for not
less than one year within the last six as shown on the CF 67.
3. Related awards and/or 30 credits above the high school level.
Criterion #4 - Ability to work with people of a variety of
backgrounds while maintaining harmonious and effective working
relationships.
Related factors on the CF 188 -
1) Attitude
10) Tact
11) Oral Communication
I. "A" - two out of the following three:
1. Not less than 4s in the above CF 188 factors
2. Experience within and outside the Customs Service which indicates
the ability to work harmoniously with people as shown on the CF 67 -
three years within the past six.
3. Awards or commendations related to the criteria and received
within the last three years.
II. "B" - two out of the following three
1. Not less than one 4 and two 3s in the CF 188 factors listed for
this Criterion.
2. Experience within and outside the Customs Service which indicates
the ability to work harmoniously with people as shown on the CF 67 - two
years within the past six
3. Awards or commendations related to the criterion and received
within the last three years.
III. "C" - two out of the following three:
1. Not less than all 3s in the CF 188 factors listed for this
Criterion.
2. Experience within and outside the Customs Service which indicates
the ability to work harmoniously with people as shown on the CF 67 - 1
year within the last three.
3. Same as above (level B)
Criterion #5 - Ability to compile statistics and/or reports.
Related factors on the CF 188 -
1) Judgment
6) Quality of Work
12) Written Communication
I. "A" - two out of the following three:
1. Demonstration of the above criteria by the fact that the
submitted CF 67 is a well prepared and coherent document. (note - this
does not mean that it must be typed.)
2. Not less than 4s in the CF 188 factors listed above.
3. Additional education above the high school level and/or training
courses related to the criterion and/or experience within or outside the
Customs Service in which the ability to write reports has been
demonstrated.
II. "B" two out of the following three:
1. Demonstration of the above criterion by the fact that the
submitted CF 67 is a coherent document.
2. Not less than one 4 or two 3s in the CF 188 factors listed for
this criterion.
3. Additional education and/or experience as stated for level "A"
III. "C" - two out of the following three:
1. Demonstration of the above criterion by the fact that the
submitted CF 67 is a comprehendable and legible document.
2. Not less than 3s in the CF 188 factors listed for this criterion
3. Same as above (level A)
General Note: Nothing below the B level was determined for the
primary criteria since in the past, a rating of C would eliminate a
candidate from the Highly Qualified list.
UNION PROPOSAL 3
STANDARDS OF PERFORMANCE - CUSTOMS AID
General Remarks - all of the following standard i.e., all of the
tasks are based on the fact that the Customs Aid is a clerical position.
For all of the following factors of the general appraisal, all parts of
the factor are necessary for a 3. A deficiency in even one part would
be reason for giving a rating of 2. To receive a rating of 4 or 5, the
Customs Aid must perform in one of the following ways:
1. The Customs Aid must perform the tasks better than the standard
requires.
2. The Customs Aid must perform higher level tasks than the standard
requires.
1. ATTITUDE
(a) toward the work - will do assigned work as follows:
(1) Pre entry review for proper documentation (i.e.,
completeness of information on 7501 and 5101).
(2) Maintains office value and classification records as
assigned.
(3) Fills out forms according to the direction of higher level
team members.
(4) Handles incoming and outgoing mail and performs other
clerical functions.
(b) toward supervisor - follows explicit instructions of supervisor.
(c) with regard to phone inquiries, office visits by importers, their
representatives, members of traveling public, Customs employees and
others, has a courteous manner, provides information within their scope
and refers caller person to appropriate authority for further
information.
(d) will work in any office assigned.
(e) shares information in order to enable office to run smoothly and
efficiently.
(f) higher levels of performance (4/5) makes suggestions and provides
input as related to his/her work.
2. DEPENDABILITY
(a) can be relied upon to accomplish assigned tasks. (for list of
Customs Aid tasks, see Job Knowledge).
(b) After general office priorities have been established by
supervisor, can order working habits in order to meet those priorities,
given the work available and within the limits set by the factor WORK
PRODUCTION.
(c) Meets deadlines set by supervisor and formed in accordance with
Work Production factor and priorities given in writing. The deadlines
will be set by the Team Leader and will reflect seasonal adjustments
etc.
3. JUDGMENT
When doing pre entry review, Live entries, Warehouse entries, is able
to determine if a discrepancy exists between the office records (value
and classification) and the entry and or within the entry itself and
consults the proper person for instructions.
4. ADAPTABILITY
(a) Is responsive to changing workloads in that he/she is able to
reorganize the workload, and the specific parts of that work to reflect
the needs of the office priorities.
(b) When alerted to new procedures, policies, and other changes,
implements them as directed.
(c) Accepts the decisions of others with regard to the following:
(1) Moving to other offices and other sections - will go when
directly ordered to do so by supervisor
(2) All job related decisions - when ordered, will follow the
decisions of the Team Leader - this does not preclude discussions
or explanations regarding the reasons for the decision.
5. JOB KNOWLEDGE
(1) Understands procedures, techniques, etc., in order to do the
following:
(a) Pre entry review, "Live" entry review, Warehouse entry
review - clerical and arithmetic tasks only - classification
appraisement and liquidation are precluded.
(b) Upkeep of Value and/or classification records
(c) Compares value and classification records with entry.
(d) Follows directions to release and/or detain merchandise.
(e) Disposes of samples as directed.
(f) Attaches documents to entry and routes to proper team
member.
(g) Prepares forms to disseminate or request information under
the direction of the Team Leader.
(h) Routes and sorts documents and/or mail
(i) Prepares daily, weekly, monthly, quarterly and other
reports as directed.
(2) Knows how to locate needed job information by familiarity with
the following sources:
(a) Statistical manual
(b) TSUSA
(c) Office Administrative Files - e.g., Uniform Filing System
(d) Office Classification and Value Files
(3) Is able to perform clerical functions related to items listed
above in part (1) by using the information noted in (2).
6. QUALITY OF WORK - Depending upon the type of work done in the
office by the Aid, the following standard is required:
(1) For entry related work - 90% accuracy
(2) For all other clerical tasks - 75% accuracy
The rating officer is responsible for documentation. The quality may
be adjusted in writing if the work done by the Aid in the office is
different and/or of a higher level than usual. As far as STAT returns,
these errors only refer to errors for which the aid would be
responsible.
7. WORK PRODUCTION
(1) Approach - organizes daily work in order to perform at expected
levels.
(2) Quantity - Actual amounts are to be set by individual Team Leader
in writing, however, they are to be based upon the maximum daily
averages listed below. If, however, an office receives less work, this
factor will not preclude the Aid from receiving a 3, 4, or 5.
(a) 25 one line, one page, one invoice entries.
(b) 1 standard form sent out per day.
(c) Every day clerical and filing and other duties as needed
such as picking up and sort mail daily.
8. INITIATIVE
(a) Will do any new tasks assigned.
(b) After the general work has been assigned, sees what needs to be
done and does it without constant repetition of directions, specific
assignments and/or instructions.
(c) Any other work methods, improvements, suggestions or demonstrated
willingness to take on additional work will be indicative of a higher
rating.
9. LEARNING ABILITY
(1) The original Aid functions should be assimilated within one
month.
(2) Any new procedures, whether from Headquarters, Region or
within the office are learned with 3 days of instructions on the
changes and made part of the Aid's work method. A proportionately
longer period is acceptable if the procedure is not used daily.
By work method, we mean that the end result reflects the new
office procedure, whether the employee chooses to memorize the
change, write it down or use any other tool.
(3) Indications of a higher rating will be either learning
things at a faster pace or learning new procedures etc., which are
at a higher level.
10. TACT - Is courteous in personal or telephone contacts.
Indications of a higher level of performance would be the following: A
sensitivity to the problems of the importing and traveling public, other
Customs employees and others and attempts to help them.
11. ORAL COMMUNICATION
Tasks - 1. Relay messages
2. Relay work related problems or information
3. Explain actions to Importing Public, their agents or team
members
Standard:
1. Oral messages are clear
2. Is able to explain situations so that they are
understandable
3. Is able to convey reasons for actions
12. WRITTEN COMMUNICATION
Tasks - 1. Rejection slips
2. CF 3107's
3. CF 28, 29, other forms
4. Written telephone messages
Standards:
a. Messages conveyed in all of the above situations
understandable and conveys precise meaning
13. KNOWLEDGE OF CUSTOMS
(a) Aware of the flow of the entry from Pre I.D., Live or Warehouse
stage to liquidation.
(b) Aware of other agency requirements as related to line.
(c) Higher levels of performance would be indicated by a greater
familiarity with the above and/or knowledge of other parts of the
Customs Service which relate to the entry of merchandise such as Entry
Control, Inspectors and/or a greater knowledge of the relationship with
other agencies.
14. STAMINA - N/A since stamina (physical and/or mental stress) is
not generally applicable to the position which is mainly clerical.
Recognizing that some employees do work in offices in which there is a
great deal of stress, some of which would fall upon the Aid, we suggest
that in these offices, the Team Leader commend the employee for his/her
acceptance of this additional burden. This should take the form of
letters of commendation or awards.
--------------- FOOTNOTES$ ---------------
/1/ See generally, National Treasury Employees Union and Department
of Health and Human Services, Region X, Seattle, Washington, 5 FLRA No.
93 (1981); International Association of Fire Fighters Local F-61 and
Philadelphia Naval Shipyard, 3 FLRA 438 (1980) (Union Proposal III).
/2/ Federal Personnel Manual (FPM), chapter 335, section 1-2h.
/3/ FPM Supplement 335-1, Appendix B, section B-4c(1).
/4/ Section 7106(a)(2) provides, in pertinent part:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of any
agency--
. . . .
(2) in accordance with applicable laws--
(A) to hire . . . employees in the agency . . .;
(B) . . . to determine the personnel by which agency operations
shall be conducted;
(C) with respect to filling positions, to make selections for
appointments from--
(i) among properly ranked and certified candidates for
promotion; or
(ii) any other appropriate source(.)
/5/ Section 7106(b)(2) and (3) of the Statute. Further, see the
explanation at 124 Cong.Rec. 29183 (1978) by Representative Udall of the
intent of Congress as to the negotiability of procedures in connection
with the exercise of rights under section 7106(a)(2)(C), as further
explicated in American Federation of Government Employees, AFL-CIO,
Local 1968 v. Federal Labor Relations Authority, 691 F.2d 565 (D.C. Cir.
1982). In this regard, it should be noted that FPM chapter 335 was
revised effective May 7, 1981 in order to afford agencies maximum
flexibility to develop, negotiate, and manage their merit promotion
programs. FPM chapter 335, section 1-1, as revised by Basic Instruction
262, May 7, 1981.
/6/ See FPM Supplement 335-1, Appendix B, section B-4c(1).
/7/ Compare 5 CFR 332.404 (1982) which requires an appointing officer
to select, with certain exceptions, from the three highest eligibles on
a certificate prepared from a register of candidates recruited through a
competitive examination.
/8/ Union Reply Brief at 5-6.
/9/ With respect to the right to hire employees, the Agency contends
that the delay which might be occasioned by the proposals renders them
outside the duty to bargain. Contrary to the Agency's contention, it is
now well settled that a procedure which merely delays, but which does
not prevent an agency from acting at all to exercise a reserved
management right is within the duty to bargain. American Federation of
Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange
Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 152 (1979),
enforced sub nom. Department of Defense v. Federal Labor Relations
Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v.
FLRA, . . . U.S. . . . , 102 S.Ct. 1443 (1982).
/10/ The Agency's statement of position cites FPM Letter 335-12,
subchapter S6, December 29, 1978, which subsequently was incorporated
into the provisions of FPM Supplement 335-1 as subchapter S6.
Subchapter S6 provides, in pertinent part, as follows:
S6-1. BASIC PRINCIPLES
Individuals responsible for the personnel measurement program
must clearly identify those examination materials (such as test
materials, rating guides, or crediting plans) which require
security and control, and ensure that proper security and control
are maintained. Instructions must be issued to maintain the
security and control of examination materials which, if exposed to
unauthorized persons, might provide unfair advantage to some
candidates or otherwise compromise the utility of the selection
procedure. At a minimum, the instructions must cover procedures
to be followed during development, printing, storage,
distribution, and destruction. Material covered by the
instructions must not be exposed to any persons, including
management officials, members of employee organizations, or
non-Federal personnel who do not have an official need to see the
material. No evaluation procedure subject to security and control
may be administered to any employee who has had access to the
covered material.
/11/ Indeed, FPM Letter 335-15, August 5, 1982, expressly permits
agencies to make their crediting plans available to candidates where
doing so would not create an unfair advantage or compromise the
selection process.
/12/ In deciding that Union Proposals 1 and 2 are within the duty to
bargain, the Authority, of course, makes no judgment as to their merits.